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Historian's verdict: Catholic justices can't be trusted

That headline is perhaps too blunt a summation of an argument by theUCLAprofessor emeritaof history, Joyce Appleby--but not by much. In a column in the Tallahassee Democrat, Appleby argues that Sonia Sotomayor's nomination raises concerns becausesix of nine Supreme Court justices would be Catholic--and that has a big downside, because, well, you know Catholics:

This dramatic change in the composition of the Supreme Court can be traced to the country's protracted struggle to achieve equality. It reflects our better selves, the ones who want to make up for decades of prejudice and discrimination. But because of the Catholic Church's active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants.

SNIP

In truth, religion is not a factor in the majority of decisions that the court will make each year. It might not be relevant at all had not the Catholic Church, with some other denominations, taken public stands on issues of great political significance today.Abortion comes immediately to mind, but it's not the only constitutional matter where religion and politics clash. This past week two eminent lawyers, David Boies and Theodore Olson, filed a lawsuit in federal District Court in San Francisco as co-counsel for two gay couples challenging California's Proposition 8. The California Supreme Court's upholding of the proposition's ban on same-sex marriages triggered the action, which seeks relief for gay couples under the Constitution's protection of equal rights.The case could go all the way to the Supreme Court, raising questions about the vigorous opposition to same-sex marriages by the church to which five, and possibly six, justices will belong.Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?

Umm, I would make that argument--and so would the Catholics on the court would argue the same, left, right, and center. I don't want to go all "Catholic League" here, but this piece leaves me gobsmacked: Appleby seems like a historian condemned to repeat history--the Nativist part.H/T: Catholic World News

Scalia argued that there is no more a Catholic approach to arriving at judgments with respect to constitutional issues before the court than there is a Catholic way to make a hamburger.The difference lies in the manner in which one approaches interpretation of constitutional texts and their applicability to current issues as well as views regarding the distinct nature of the judiciary and the legislative branch.Of course the devil (and God) is in the details!!!!The point is that questions regarding the justices should focus on judicial temperment. Scalia' point is that personal experience of faith does not drive his analytical process. Ironically, Sotomayor's view, as I (mis)understand it is that her experience (specifically as a Latino and a woman) does drive her analytical process and this is not a negative.At any rate, people like this journalist should get out more and meet real live practicing Catholics and she will soon discover a variety of views and perspectives at work.

My concern is that the Protestants aren't well represented numerically, not that there are too many Catholics. And I would have the same objection if there were six Muslims or six atheists. Diversity brings the wisdom of diverse cultures. That the Professor doesn't see that judicial decisions are judgments about whether or not a law is consistent with the Constitution and not whether the law is consistent with with the justices religious beliefs or even with the justices' personal view about the justice of the law at issue. The Constitution does not promise justice, and the justices are not appointed to provide it. (Lawyers, please correct me if I'm wrong.)If this isn't a religious test for office, what would be? Such ignorance.

I think it's sad that it should be the case -- or that anyone should argue it's the case -- that being a Catholic has no effect on how a Supreme Court justice decides cases. If deciding cases doesn't require human beings, perhaps we should program a supercomputer to interpret the Constitution. If it does require human beings, how can their deeply held convictions about the nature of existence exert no influence on their decisions as justices.Think of a saint you admire, and try to imagine him or her as a Supreme Court justice. I just can't see St. Teresa of Avila saying, "My religion will have no influence on how I decide cases." I thought the idea of "checking religion at the door" was offensive to Catholics.

David:We have to respond to the modern world the way it is constituted. Religion remains part of the private realm which doesn't make it unimportant or valuable. It simply means that religious belief will not play a formative part of a public discourse.

David,I found this to be of interest, thanks for pointing it out. I wondered, over on my blog (nancydallavalle@blogspot) whether Appleby's target audience might actually be the bishops who narrowly define "Catholic" in public? Are they, in fact, making it impossible for Catholics to serve in a variety of offices?

"I wondered...whether Appleby's target audience might actually be the bishops who narrowly define"Catholic" in public."I have no doubt that Appleby's audience is also the Bishops. She would rather they not remind their flock that Catholicism is not merely some religion but rather it is a living witness to " The Way, The Truth, and The Life of Love, God. This is the same God upon which this Nation was founded, the Universal God, a.k.a.," the Creator ".

Nancy Dallavalle (who'd a thought we'd have two Nancy D's?)...Appleby's analysis doesn't seem to display such a knowledge of ecclesiastical politics, to me. Otherwise she'd be happy to have a Catholic like Sotomayor, no? Then again, pace Nancy Danielson, none of the "conservative" Catholic fellows on the bench listen to the bishops either, it seems.

I'm disappointed with this column. Joyce Appleby was co-author of a good book on historical method, "Telling the Truth about History," which resists sloppy appeals to relativism in the historical craft. Apparently historians can do what Catholic judges can't: tell the truth.

I thought the appeal to limit Catholic judges absurd - David is right, judges making decsions who happen to be Catholic -as the new thread points out, no religion test.I guess the only problem I can see is if Judges were "threatened" by their Church to decide a case.

This is an historic issue with the Church in our country. Fear of Papal influence was a factor in Al Smith's defeat in 1928, and JFK allaying those fears was a factor in 1960. Essentially there are two sides: public officials who believe that they can be themselves, and bishops who think that laity are obligated to do what they say. I don't see this being resolved anytime soon, if ever. If only we had a third party who could judge which is right, but bishops are the supreme judicial authority in the Church, and judges in the government, so there is no one left to judge.

Right, Bob, which is why I suggest that it might be the Catholic bishops, not the judges, who should consider when to "recuse" themselves! I don't mean at all to have the bishops silent on the faith, my fellow Nancy, but IMHO, some have exercised their authority in a way that allows for the tropes of Nativism to be re-ignited.And yes, David, when I observe that Appleby says "x", but maybe is just showing "y" -- this may be reading WAY more complexity into the argument that the essay supports!

Nancy DLV: I am all for reading complexity into simple things--indeed, I'd have nothing to do if I didn't...I do think it is important to make distinctions re Catholics in public life between legislative arenas and judicial arenas. The impact of faith teachings and culture can have a greater impact in one than the other.

Scalia, years ago, said, "Catholic judges who believe capital punishment is wrong should resign." (http://www.cbsnews.com/stories/2002/02/05/deathpenalty/main328253.shtml ) Seems it is a common theme, from people on all sides. The problem is, it is always "they should resign" or "recluse themselves" on issues where the judge is not for the opinion of a given commentator. This could be a way to make sure no judges ever can be on the bench again. There will always be someone who think their views are wrong.

I do think it is important to make distinctions re Catholics in public life between legislative arenas and judicial arenas. The impact of faith teachings and culture can have a greater impact in one than the other.David Gibson,I think this may be true in practice, but I don't really get the rationale behind it. As I keep pointing out, the bishops have declared the American system of justice "fundamentally flawed." What obligation should a judge feel to a fundamentally flawed legal system when he or she has the Catholic Church as a source of absolute truth? Why shouldn't Catholic judges try to get around Roe v Wade or any other court decision or law in our legal system if they think they can prevent "murders"? This may come across as sounding anti-Catholic, but in a way the accusations of anti-Catholicism would be something like, "How dare you imply a Catholic judge would be less than impartial in a case where he believes a mother wants to murder her unborn child?" George D: We have to respond to the modern world the way it is constituted. Religion remains part of the private realm which doesnt make it unimportant or valuable. It simply means that religious belief will not play a formative part of a public discourse.Was this meant seriously? I personally believe that all American law should be based on secular thought and have secular purposes. So, for example, I believe that the only way to claim that a fertilized human egg is a person is by an appeal to religious belief. Consequently, I don't see how stem-cell research can be prohibited by the government (at least on the grounds that it is taking human lives). But that is not the way the American bishops see it!

David:The issue that the journalist was making is that a judge simply by virtue of their religious faith must recuse themselves because they cannot be objective.I can grant her the point that obviously our experiences colour how we will see the world and for judges their reading and reflection. However, the only way to evaluate that hypothesis is to test it.I don't think the evidence will support her concern. Take the case of Sotomayor, who acknowledged the effect of her gender and ethnicity on her approach. It is not at all clear that this view made her more sympathetic to the claims of minorities in discrimination cases. She balanced these claims against the spirit and test of the legislation and previous case law and arrived at decisions which did not favour the minorities (or so I have read).I think a better example of judicial approach is the death penalty and people who have wanted to elimenate it by doing an end run around the legislative process and have the court declare the death penalty cruel and unusual punishment. This seems like a reasonable and rational basis for a judge who may be personally opposed to the practice to stealthily ban the practice by appeal to cruel and unusual punishment. But arguing that view might prove to be tendentious and besides if people feel that way, they can change it by way of the democratic process. IN the case of stem cell research, I think that science clearly points to (at a minimum) the unique status in terms of DNA composition of a fertilized human egg. It is a legitimate public debate and discussion and needs to be carefully thought through. Besides, President Obama has moved the debate around abortion from a rights issue to a moral issue. I think from a strictly rational, ""secular" perspective he is correct. This is where the discussion needs to be joined and where clearly the pro-life position is the more reasonable one although there is allowance for boundary cases.

David, you wrote, "I personally believe that all American law should be based on secular thought and have secular purposes."What constitutes "secular thought" and "secular purposes?" Who decides same?You also stated, "...I believe that the only way to claim that a fertilized human egg is a person is by an appeal to religious belief." Only by "religious belief?" How about philosophical argumentation? How about human sympathy, i.e., the understanding that each of us went through all the stages of prenatal development, that "there (i.e., an aborted human offspring) but for the grace of God go I?"On the other hand, if --- as you assert --- recourse to "religious belief" is the only way one can support personhood, what kind or category of belief/argumentation can be used to deny personhood to unborn human offspring? To put it another way, if you challenge pro-lifers, can we not challenge you? It seems to me that argumentation (beliefs aside for a moment) cuts both ways.

A perons can no more be free from the effects of religious belief or unbelief than she/he can completely neutralize the other effects of cultural affiliations, upbringing, experience of others,--you name it.

Hi George D,What I meant to say was that it isn't surprising (to me, anyway) that a majority of one specific group on the Court would cause some concern among those who aren't of that group. That doesn't necessarily mean there is actually reason for concern. But I have the feeling that if most of the judges were atheists, there would be a few concerned Catholics.

We should fear 6 of 9 Catholic SCOTUS Justices but people were all perfectly content with 9 of 9 protesters? I know you were trying to be tempered David but sometimes plain words are needed. You say history is doomed to be repeated, "the Nativist part". In academia credibility is crucial, I'm just wondering what's the credibility of a Know-Nothing? The thing of it is I don't even support Sotomayor's nomination, not because she rules at times against Church teaching but because she legislates from the bench. Therefore she is unfit as a Justice where there are no appeals. The out and out Anti-Catholic sentiment in this country along with internal divisions being promoted, (Yes, I'm looking at you Dave) perhaps a few more people of the faith need to get all "catholic league" on matters. Then blatent discriminatory speech such as the piece you just cited wouldn't be tolerated as it isn't tolerated by any other groups. Imagine if she said well we can't have another woman on the court, you know how they get... Or we can't have a Hispanic, or a Black, or a homosexual. Which MSM outlet wouldn't have it as the lead every hour on the hour??? How many gb's of space would be crammed packed about the offensive hate filled nature of these comments? John Hughes didn't put up with the Know-Nothings then and I'll be damned if we should put up with those that know even less now..

"But I have the feeling that if most of the judges were atheists, there would be a few concerned Catholics."This is true, Crystal. As an atheist judge, how does one form an opinion in conformity to the Law of a Country whose Government is based on the universal, unalienable, Right to Life, Liberty, and The Pursuit of Happiness that is endowed to all Mankind by their Creator? These Rights are universal and unalienable by virtue of the fact that they are endowed to us by our Creator.

Then blatent discriminatory speech such as the piece you just cited wouldnt be tolerated as it isnt tolerated by any other groups.I have to laugh when the occasion of the nomination of the sixth Catholic to the Supreme Court is use to complain about how terrible anti-Catholicism is in the United States! You know just how anti-Catholic a country is when only the Vice-President, the Speaker of the House, the head of the CIA, the Secretary of Health and Human Services, and six of the nine justices on the Supreme Court are Catholic. Only when all nine justice are Catholic can we begin to feel the weight of oppression being lifted.

David N,I'm glad you found amusement in your misunderstanding of my post. What would the outpouring of indignation be like if the historian said these things in the context of homosexuals, women, blacks, hispanics, etc, etc, etc...? The heads would be rolling I assure you. The fact that 6 out of 9 SCOTUS Justices will be Catholic is as irrelevant as if they were any other group. If you don't think there is anti-Catholic sentiment in the US I must wonder what broadcasts, blogs, or websites, dinner parties, comedy clubs, office water coolers and the like you've been secluded to in order for you to make such an outlandish and ill informed claim?The individuals in public office you've cited can hardly be considered stellar examples of people who live their faith. There actions have proven quite the contrary and if I'm not mistaken there's been some rumblings in the press as certain members of the Church hierachy have called for these or some of these individuals you mention to be denied the Eucharist. That being said, I can only venture to guess your ideas of Catholics in public office are narrowly interpreted to those whom are a communion wafer away from excommunication. Talk about a laugh...Being born Catholic no more makes you a Catholic than being born on a hillside makes you a billy goat. Your actions and deeds are what defines you, not the title you bring for political pandering and advancement.

Im glad you found amusement in your misunderstanding of my post. What would the outpouring of indignation be like if the historian said these things in the context of homosexuals, women, blacks, hispanics, etc, etc, etc? The heads would be rolling I assure you.C3,When the sixth gay man and/or lesbian (or the sixth black, or hispanic, or woman) is named to the Supreme Court, I will let you know what remarks about him or her I feel constitute bigotry. I had suspected you were going to imply that prominent Catholics like Biden, Pelosi, or Sebelius were "bad Catholics," but it seem to me you are not being realistic about the way bigotry works. Anti-Semites do not quiz Jews on how observant they are. Racists don't discriminate against blacks based on how deeply they are into black culture. If you self-identify as a person, anti-gay bigots won't wait to decide how they feel about you until they know the details of your sex life. And if you self-identify as a Catholic, anti-Catholic bigots will not check to see how often you go to mass and receive communion. Your actions and deeds are what defines you, not the title you bring for political pandering and advancement.Go back in time and tell that to a Jew in Nazi Germany or a black man being lynched in the South.

David N,So you feel that once a person regardless of social, racial, gender, or economic grouping reaches a certain level of success or prominence then it is completely justifiable to attack the group or groups of people of that particular inclination? Come on now, I hardly know you and I'm not even going to entertain the notion that you'd be this illogical in your opinions.First and foremost before we continue we must prioritize on how these individuals are defined. I would say for the greater majority it can be said that they are politicians first, and though I suspect truly something to the contrary for argument sake I will say Catholics second. Was it these individuals principled stances on Catholic teaching that made these people the prominent politicians of power that they are today? I would hardly believe this to be the case. So they abtained their status then by comprimising those principles of faith that they were taught by the Church. If this seems a bit harsh I can allow that they perhaps didn't comprimise but rather paid no heed to them as they climbed the ladder of success. They might of flashed their Catholic credentials here and there like a cop flashes his badge to get into a club without paying cover but as the cop isn't there on police business neither are any of these people "on duty". They use their identity as a Catholic to suit them when needed. I'm well aware of the inner workings of bigotry I've experienced quite enough in my day. Everything that you have stated simply confirms my protest against such baseless and prejudice claims this historian is trying to make a case for against Catholics. It is senseless, the argument has no rational position from where it has taken root. Like anti semitism it is expecting people to believe things that are considered baseless and irrational!You've seemed to change tracks here on the last part, I'm against bigotry of all forms, sure I enjoy a little playful rabble-rousing at the protesters' expense but surely you won't deny me a little fun, no? Just like not all Germans are responsible for the Shoah and not all Southerners are responsible for lynchings; not all Catholics are Papal automatons who have no opinion or free will of their own and subscribing only to what is programed by the Bishop of Rome. Which is a Nativist's position, a Know-Nothing's, and a bigot's.This isn't to say a few of them in office couldn't be improved upon if this was the case...

C3,What is interesting about your position is that you seem to be saying all of the prominent Catholics I mentioned are "bad Catholics," and public acceptance of them is not evidence against anti-Catholic bigotry. (By the way, of course there is some anti-Catholicism in the United States, but obviously, in my opinion, not enough to hold Catholics as a group back.) But Joyce Appleby says, in her conclusion, "Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?" What she is concerned about is not that Catholics on the Supreme Court would be bad Catholics. She's concerned that they would be to influenced by the teachings of the Church. And you and practically everybody here are arguing, "How dare you suggest Catholic judges would let their faith influence their judicial decisions!"As of late, the Catholic Church has been very active in making pronouncements about the duties of politicians and voters, and it has taken positions on what the law ought to be in the United States regarding abortion, gay marriage, and other issues. And people are suggesting that it's bigotry to be concerned that Catholic judges will actually be influenced by Church teachings!Justice Scalia seems to be very proud of the fact that he checks his Catholicism at the door before entering the Supreme Court. How do you feel about that. Does that make him a bad Catholic in your eyes, like Pelosi or Biden?

"What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks. "It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons."

It seems to me that it is perfectly reasonable to ask what effect a person's Catholicism will (and should have on his or her decisions as a Supreme Court Justice. Scalia did not seem to be offended by the question, and yet many people here are acting as if it's anti-Catholic even to ask the question. And so far, in the two ongoing strings on judges and Catholicism, nobody has been willing to make the case one way or another as to whether being Catholic should ever influence a judge's decision. Is it a good thing that Catholic judges are interchangeable with Protestant judges and Jewish judges? Has there ever been an avowed atheist on the Supreme Court? An Amish person? A Jehovah's Witness? A Seventh-Day Adventist? Someone from the Church of Scientology? A Mormon? A Muslim? A Hindu? A Buddhist? Would we call it bigotry if someone raised the question of whether any of those would be influenced by their religion (or lack of it)?

"Who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns? What she is concerned about is not that Catholics on the Supreme Court would be bad Catholics. Shes concerned that they would be to influenced by the teachings of the Church. And you and practically everybody here are arguing, How dare you suggest Catholic judges would let their faith influence their judicial decisions!I agree with Nancy DL,The judges' Catholic beliefs aren't the only concern here. Note the phrase "authority of the Catholic Church". Striclty speaking, that is not merely a faith issue, like the nature of the trinity. It's also a matter of the prelates' increasing attempts to exert influence over the conduct of tha laity in the public sphere.In that regard, what's to prevent them from deciding to apply communion rail politics of some other form of religious coercion to a Catholic judiciary as they have to elected politicians? (Talk about judicial overreach and legislation from the bench, where's does one go to appeal that decision? ) Given the absolutist nature of the hierarchy and its charism claims, it's no wonder there's suspicion. How do you know how susceptible a justice would be to that kind of pressure -- especially in view of the claim from Cardinal George (I believe) that President Kennedy, who disavowed such authority, effectively renounced his faith?

Please correct me, but isn't the primacy of individual conscience and the reach of the hierarchy over conscience claims what's really at the bottom of this issue? Isn't that what protestantism is all about? You never hear about anyone being excommunicated from a protestant sect and if you did, there probably wouldn't be much fuss made over it. Whereas the threat of excommunication is wielded coercively all the time by Catholic prelates, who are well aware of its potential for intimidation.

David N, I believe I must clarify my view of what you consider "good" or "bad" Catholics. I reject this notion as you put it because to think in these terms if one is to have any credibility one needs moral authority. I don't have such authority. I believe that it is a person living the tenets of Catholicism that make you either a Catholic or a protester. If we are keeping this in the Christian family of course. There isn't anything to be considered as good or bad, it is a matter of whether or not you follow the identifiable behavioral patterns which make or break you in this regard. In other words it is more than just a name.The politicians while all might be baptized and confirmed in the Church might carry the title of Catholic but their actions in public office prove to be the contrary. They may claim Catholicism as their religion but their actions and justifications toe the line more with the protesting sects of Christianity. They like many others who claim to be Catholic wish to view things in their own way, independently and often in opposition to what the Church teaches. A variation to the degree in which their expressed behavior shows no signs whatsoever that they do believe as the Church believes. Do this make them good or bad? No. It does however show depending on their opinions, behavior, and their positions whether or not they are indeed Catholic. Good or bad play no part. It is whether they present the recognizable traits in their actions, in their beliefs that make them such. Your presentation of this is whether they are good or bad Catholics from a judgemental viewpoint. I'm presenting my case free of judgement, from an identificational standpoint. Now, as this pertains to our discussion. The people whom wish to defend the seperation of Church and State are not very even handed in their opinions. Let's back track for a minute. We as a species have personalities that are made up of a culmination of life experiences. We indentify, classify, and catagorize all phenomenon we come across. This builds us into the people we are. A person who is Catholic or hindu or Buddhist, or whatever holds a unique perspective that is based on this accumulative experience we call life. If that person is brought up, raised, and surrounded by Catholics then this person conscience of it or not is going to have an opinion that either coincides with Catholic culture and teachings or it will not. This depends on whether the person has found Catholicism as an attraction or aversion. This is who the person is. The seperation of Church and State isn't the doctrine for the State to determine what role the Church plays in our country and certainly what role it plays on our conscience. The seperation of Church and State was based on the notion that no single faith should hold a monopoly over the State. It was written so that the State should not sanction or endorse any particular religion so that it would intrude on people of other beliefs. That the State's authority shouldn't control the Church and demand it to succumb to the will of the State. That a national church regonized as supreme like the Church of England shouldn't come to pass. These are the reasons for the call of seperation. Not to prevent someone who has religious beliefs to leave them at the door. In doing so that person is leaving a part of himself at the door. A very important part at that, and one that could cause someone to judge erroniously due to the over compensation one may feel about not interjecting that part of themselves into the judgement. The mindframe of our founding fathers was saturated with the knowlege of the discontent, rivalry, and wars that have transposed by opposing forces throughout Europe since the Reformation! A historian should know this. This is why my inclination is to believe that it is Anti-Catholic sentiment that fuels this debate and not merely an argument about the suitibility of 6 Catholics to be on the SCOTUS. If truly the seperation of Church and State was at issue, than the religious denomination of the individuals wouldn't be.

It is true that the separation of Church and State exists so that the State or Government can not control the various Churches nor establish a National Church. Many Europeans came here because they were escaping Religious persecution.David, don't you think that Justice Scalia needs to revisit his comment about "walking around Persons", since Personhood does not require that one be able to walk around?

David, dont you think that Justice Scalia needs to revisit his comment about walking around Persons, since Personhood does not require that one be able to walk around?Nancy,Scalia believes it is his job to interpret the Fourteenth Amendment based on what its authors meant to say. In his judgment, when they said "person," they were not referring to human beings that had not been born. He is almost certainly correct in his conclusion about what they meant. So it's his judicial philosophy that prevents him from applying the Fourteenth Amendment the way you want him to. He would be on your side if he were to say, "They didn't mean the unborn, but today we know the unborn really are persons, so the Fourteenth Amendment should apply to all persons, born and unborn." But that is not what he believes the role of a Supreme Court justice to be. He would argue that the Constitution means what its authors understood it to mean, and his job is to figure out what they meant.